WI FLSA Requires Employers to Pay Employees for Short Breaks

Court Rules Employers Must Pay for Short Breaks

As we have previously noted on this blog, federal and Wisconsin laws do not require employers to allow workers to take breaks during the work day. Many employers allow their workers at least a few minutes’ rest during the work day, recognizing that allowing for short breaks improves a worker’s productivity. However, one employer found itself in legal trouble when it opted to not pay its workers for even short breaks of a few minutes’ worth of time. The federal Third Circuit Court of Appeals determined that this policy was in violation of the Fair Labor Standards Act.

Federal Court Rules Breaks of Less than 20 Minutes Are Compensable Work Time

Defendant Progressive Business Publications required sales representatives to log off their computers for any breaks taken during the day. Workers were paid minimum wage for only the minutes when they were logged in to their computers. This meant if a sales representative got up to get a cup of coffee, use the restroom, or even pause to collect their thoughts between calls, they were logged out and not compensated for that time.

The federal Department of Labor sued. By not paying for short breaks, the DOL alleged that the employer was effectively paying the workers less than the minimum wage for each hour worked. The DOL relied on a regulation that interprets short breaks as working time:

Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time. 29 C.F.R. § 785.18.

The Third Circuit decided that this regulation requires employers to pay covered workers for breaks less than twenty minutes in length.

The employer characterized its policy as “flexible time,” and claimed that these uncompensated gaps, when workers were free to use time for their own purposes, were not actually “breaks” and so would not be covered by the regulation. The Third Circuit disagreed, noting that the FLSA does not allow employers to circumvent the law by “disguising a break policy as ‘flexible time’.” The court determined that the DOL’s interpretation that breaks of twenty minutes or less are compensable was reasonable and supported the FLSA’s goals in supporting the well-being of workers. The court also upheld the grant of liquidated damages to the workers, finding that the employer did not act in good faith when establishing this break policy.

Protection Under Wisconsin Law

Wisconsin law provides even stronger protections for workers than the federal law. Unlike the FLSA, which only requires that covered workers be paid the minimum wage and overtime wages, Wisconsin state law requires that covered workers be paid their regular rate of pay for all hours worked. In addition, Wisconsin has a similar regulation requiring payment for rest breaks up to thirty minutes in length:

Rest periods of short duration, running less than 30 minutes are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time. Wis. Admin. Code § DWD 272.12(2)(c)(1).

As we’ve previously discussed on this blog, under Wisconsin law, workers must also be paid for meal breaks unless those breaks are thirty minutes long and workers are completely relieved of duty during the meal.

What Does This Mean for Workers?

Failing to pay workers for all hours worked is a common form of wage theft. A Wisconsin worker who is not paid for breaks of less than thirty minutes may have a legal claim for unpaid wages. Employees who are required to punch out or log off during breaks of any duration should confirm whether they are being compensated for that working time.

If you are concerned that you may not be receiving compensation for all hours worked, please contact the wage and hour attorneys at Hawks Quindel for a free consult.

Caitlin Madden is an associate attorney in Hawks Quindel’s Madison, Wisconsin office, where she represents employees in wage and hour litigation and employment discrimination. A former elementary school teacher, she is passionate about using the law to help individuals who are facing overwhelming challenges.

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